· People v Frankline (KA 10-01632) – 4AD first rejected D’s argument that the verdict with respect to the kidnapping counts was against the weight of the evidence because the People did not prove beyond a reasonable doubt that he restrained the victim. Victim testified that she was held against her will by D, her ex-boyfriend, in his apartment, where he repeatedly hit and kicked her while her arms and legs were bound with wire. D also poured gasoline on victim and threatened to set her on fire if she did not have anal intercourse with him. Although there may have been periods during which victim was not restrained, jury could have found that she was effectively restrained by D’s threats to harm her if she attempted to leave. There was also evidence corroborating D’s story, and the jury was entitled to credit her testimony over D’s.
4AD next rejected D’s contention that the lower court’s decision to permit the People to present evidence of subsequent crimes committed by D against the same victim effectively deprived D of his Fifth Amendment rights with respect to the subsequent crimes. The argument was not preserved, but in any event, the People were prohibited from cross-examining D regarding these crimes and they were admissible under People v Molineux.
Finally, 4AD found that the lower court properly concluded that the victim had apparent authority to consent to the search of D’s apartment. Although she no longer lived there, the search was conducted during the month for which the victim had paid rent, the utilities were still in her name, she retained the key to the apartment, and had left her cloths there.
· People v Jenkis (KA 10-02511) – Lower court erred when it determined D was ineligible for re-sentencing under the 2009 DLRA because he filed the motion after being re-incarcerated following a parole violation (People v Paulin). That D was again released on parole did not render his re-sentencing motion moot (People v Santiago).
· People v Myers (KA 10-00418 & 10-00419) – Lower court did not err in admitting three letters written by D. Court first noted that the requirement that a writing must be authenticated may be satisfied by circumstantial evidence. The People satisfied the authentication requirement with such evidence despite the victim’s testimony that the letters were not in D’s handwriting. Letters referred to the crime and the circumstances of the prosecution in terms that justified the inference that D wrote them. Victim also testified that she knew D wrote the letters based on certain information in the letters.
· People v Tabor (KA 09-00154) – 4AD modified judgment convicting D of two counts of assault by vacating conviction of one of the assault counts. That count was joinable with the first count, however, the People did not indict D on the second count until after D’s conviction of the first count was reversed and set for retrial. CPL 40.40 prohibits prosecution of joinable offenses after trial on one offense commences and the People have sufficient evidence to support a conviction on the other offense, but do not seek indictment on that offense. 4AD agreed with D that “[w]here the evidence against a person is in the prosecutor’s hands, he [or she] may not--as a player in a game of chance--deal out indictments one at a time.”
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